More on Aaron Swartz

I got some feedback that the analogy I used in my last
post was a bit confusing, and indeed I blew the phrasing of the analogy
(also now corrected). So let me try this again, since I think there's a
subtlety here that may be missed.

I should note for the record that my understanding of what Swartz did that
started the process is apparently somewhat based on the description from
the prosecution, so it may not be the complete or accurate facts. Since
there will now be no trial, we may never find out what the defense was,
and whether those facts would be challenged. So it may be best to think
of this as a hypothetical. We never established, or will establish, in
court exactly what happened.

Swartz was, generally speaking, charged with two things that I consider
quite distinct, at least from an ethical perspective. Most of the focus
is on the copyright part: downloading JSTOR articles with an intent (never
acted upon) to distribute them to the world. There are a bunch of reasons
why this may or may not be justified, which are tied into the origin of
those articles (many of them were publicly funded) and the legitimacy of
copyright licensing agreements. I think there is significant room to hold
a variety of opinions on this, although I don't believe that "crime worth
35 years in prison" is even remotely close to justifiable under any
interpretation.

However, there is a second part of what he was charged with, and that's
primarily what I was commenting on, not the copyright part. He
allegedly hooked up a laptop in an unlocked MIT wiring closet without
permission and then used MIT's network and JSTOR license to download
information. This is, to me, a subtlely but entirely distinct act from
the question of whether taking JSTOR's data was ethically or legally
wrong. Whether or not one believes that JSTOR's copyrights are not
legitimate, it's still not okay to use someone else's network and license
or to trespass in their wiring closets without permission. (I work in
central IT for a university, so this strikes closer to home.)

And this is where the analogy came in, which I flubbed. I had originally
said that this was akin to "traipsing into someone's barn or backyard shed
without their permission and taking some of their tools because you want
to use them." The word "taking" was wrong; it falsely implies that you
weren't going to return the tools. I had been thinking "taking and then
returning" when I wrote that, and the important second part didn't make it
into the post. So let's try this again:

Swartz's actions at MIT, as I understand them (and many things could
change this, such as a revelation that he had MIT's prior permission), are
akin to going onto someone's property and into their barn without
permission, borrowing their hedge trimmer for a while because you want to
use it, and returning the hedge trimmer without any damage when you're
done (and without them noticing it was gone).

I'm quite fond of this analogy, since I think it clearly establishes two
things:

Most people are going to be unhappy about this happening and will
intuitively feel like it should probably be illegal. Not everyone;
there are folks who don't believe in personal property, or at least
wouldn't extend it to tools in a barn. But most people will feel that
someone should ask first before they come borrow your tools. Even if
they don't damage them, even if they return them before you notice
they're gone, you might have wanted to use the tool at the same time
or they might have damaged them without intending to, and they should
just ask first. It's common politeness, and depending on the
circumstances, someone who doesn't ask and is covert about borrowing
tools might be worth calling the police over.

There is absolutely no way in any reasonable moral system that doing
this should result in 35 years in prison. Or even 10, or even 1.
Yes, most people would consider this a crime, but most people would
consider it a minor crime. It's the sort of thing where you
might have to impose some consequences just to make sure the message
of "knock it off" is delivered firmly, but someone doing this is rude
and inconsiderate, not evil.

The JSTOR copyright stuff is more complex to analyze and is more
politically divisive, but for me the key points are (a) Swartz never
released the data, and (b) JSTOR declined to press charges. To me, that
means the deeper copyright questions, which are quite interesting, were
never actually reached in this particular case. The crime that did
apparently happen was the trespass at MIT, for which I think the above
analogy is the right way to think about it.

The point I do want people to take away from this is that one should not
overlook the trespass at MIT even if one wants to celebrate the
undermining of the copyright regime and doesn't believe JSTOR's data
should be considered their private property. Social activism and
political disobedience are important and often valuable things, but
performing your social activism using other people's stuff is just rude.
I think it can be a forgivable rudeness; people can get caught up in the
moment and not realize what they're doing. But it's still rude, and it's
still not the way to go about civil disobedience.

For both ethical and tactical reasons, involving bystanders in your act of
social activism without their consent is a bad approach.

ETA: The problem, of course, with discussing all of this is that
while it's relevant and possibly even somewhat important in the broader
sense of how our community acts going forward, it also doesn't capture the
fact that this was only one incident in a remarkable life. One of the
worst problems with the abusive prosecution of Swartz is that it blew this
incident completely out of proportion. A moment of arguable judgement
should not dominate one's life or cast a shadow over all of one's other
accomplishments; the prosecution tried to make it do just that. That's
part of what I'm arguing, but ironically that partly feeds into the lack
of proportionality in the discussion.

I've gotten kind of far afield here, so let me go back and say explicitly:
Swartz was a remarkable person who did much to admire and respect, and the
world is a worse place without him.